QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOOPER
| Director of Public Prosecutions|
|- and -|
|R Clive Winston Morrison|
Patrick Roche (instructed by Deighton Guedalla) for the Defendant
Hearing date: 20 March 2003
Crown Copyright ©
Mr Justice Hooper:
This is the judgment of the Court
" 1. Was the Wood Green Crown Court wrong in law to hold that the Metropolitan Police on the evidence in this case had no lawful power or authority to close the public right of way over private premises by a cordon and forcibly prohibit the Defendant from using that right of way on foot against his will?
2. Was the court wrong in law to hold that the Defendant had no case to answer on both the charge of disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress contrary to section 5 of the Public Order Act 1986; and of wilfully obstructing a constable in the execution of his duty contrary to section 89(2) of the Police Act 1996?
" (i) On 14.05.2001 at North Mall, Edmonton Green, N9, used threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to Section 5 (1) and (6) of the Public Order Act 1986.
(ii) On 14.05.2001 at North Mall, Edmonton Green, London N9 wilfully obstructed PC 204 YE Peter Sandell, a constable in the execution of his duty, contrary to Section 89 (2) of the Police Act 1996."
" i) There is no statutory power or authority for the setting up of a police cordon so as to close off an area otherwise open to the public other than under S.33 of the Terrorism Act 2000 which came into force on 19 February 2001.
ii) There is no known express power to cordon and exclude people from a public place under Sections 1 and 8 of the Police and Criminal Evidence Act 1984 even if a magistrates' court warrant were obtained. There is no suggestion that such a warrant was sought or obtained in this case.
iii) There is no evidence that any local bye-law applied to the Edmonton Green shopping centre, for example a market bye-law."
"1. The only specific authority that can be found in English law for the setting up a cordon is under the Terrorism Act 2000. That does not apply to the present case. It is significant that that came into force just 3 months before the events in this case.
2.The police both at the time they set up the cordon and at this hearing have worked on the assumption that there is a lawful power to set up and maintain a cordon. From that assumption it followed that the police officers' attitude and language was the language of command not the language of request. For the purpose of this submission we take the Prosecution evidence at face value. On that basis there was a problem of "attitude" on both sides. The police attitude was the language of command. Mr Morrison's language and attitude was that of challenge.
3. On the evidence before us about the nature and extent of the public right of way along the walkway, it has been established that there was a public right of way over the land shown in photograph 9. There is no evidence that that public right of way was lawfully closed or excluded.
4. There is no evidence before us from Inspector Hunt who authorised the cordon. All we have is hearsay evidence about his reasons. We have no direct evidence as to what, if anything, he had reasonable cause to suspect. Similarly there is no direct evidence as to Inspector Hunt's reasoning or what he thought to be the legal basis for any power or duty to set up a cordon.
5. We conclude that if Inspector Hunt believed that he had the power to authorise and set up a police cordon he was mistaken. Consequently the police officers who were acting on instructions from Inspector Hunt were misled about the extent of their authority.
6. There is an important conflict in the Prosecution case between the evidence of PS Power and PS Collin about who as between Sergeant Collin and Mr Morrison first pushed the other. This is very important because it relates to Mr Roche's (counsel for the defendant) third ground of appeal based on R v Galbraith. This is a classic ground for submitting no case to answer where the police evidence contains an important conflict between their own witnesses. It is inevitable given the presumption of innocence that if there is such a conflict we should resolve it in favour of the defendant. There is no sufficient reason to exclude the evidence of PS Power that Sergeant Collin laid hands on Mr Morrison before he was arrested or was told he was going to be arrested. This conclusion is supported by the evidence of witnesses that Mr Morrison was protesting vigorously "Don't fucking touch me."
7. For the reasons I have explained there is insufficient evidence produced before us that PC Sandell was acting in the execution of his duty when he arrested Mr Morrison. Similarly there is insufficient evidence that Morrison wilfully obstructed PC Sandell with the intention of causing harassment, alarm and distress. To use a colloquial expression, it was not the defendant who was guilty of disorderly behaviour, it was PC Sandell who was 'out of order' in an attempt to prevent Mr Morrison from exercising his right to use a public right of way.
8. There is insufficient evidence before us that one ingredient of the Section 5 offence was established to constitute a prima facie case. There was no direct evidence of any harassment, alarm or distress being caused to any member of the public or police officer. No police officer has been asked if they or any member of the public was caused harassment, alarm or distress. It is accepted that in some circumstances in particular as set out in Chambers v Edwards, the fact-finding tribunal can infer harassment even if no witness expressly says that they were harassed. It is important negative evidence that no witness speaks of any such harassment, alarm or distress which is an essential ingredient of the offence. We have considered all the evidence and we conclude there is no evidence that anyone was caused harassment, alarm or distress. We also conclude that there was insufficient evidence of the necessary intention to make a case to answer.
9. On all the evidence produced by the Prosecution and before us we conclude that Mr Morrison's words and conduct are attributable to his desire to assert his right of way and by way of self-defence in reaction to the threat of assault when PS Collin moved towards him."
"the police should be able to do whatever is necessary and reasonable to preserve the evidence of the crime."
"(a) Undertaken for the purposes of an investigation into an alleged offence, with the occupier's consent, other than searches made in the following circumstances:
- routine scenes of crime searches
- calls to a fire or a burglary made by or on behalf of an occupier or searches following the activation of fire or burglar alarms
- searches to which paragraph 4.4 applies
- bomb threat calls"
"Similarly there is insufficient evidence that Morrison wilfully obstructed PC Sandell with the intention of causing harassment, alarm and distress. It was not the defendant who was guilty of disorderly behaviour, it was PC Sandell who was 'out of order' in an attempt to prevent Mr Morrison from exercising his right to use a public right of way."
"(4) A constable may arrest a person without warrant if
(a) he engages in offensive conduct which a constable warns him to stop, and
(b) he engages in further offensive conduct immediately or shortly after the warning.
(4) A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.